TMI Blog2014 (5) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... on hardly requires any further elaboration and yet both the authorities having failed to entertain these new legal grounds for which already the facts were existing on record, the appellant has succeeded in convincing us of a need to interfere with the orders of both the authorities by answering the question framed in its favour. Matter remanded back to Commissioner (Appeals) for consideration of these issues afresh - Decided in favor of assessee. - Tax Appeal No. 535 of 2012 with Civil Application No. 221 of 2012 - - - Dated:- 10-1-2013 - Akil Kureshi and Sonia Gokani, JJ. Shri Paresh M. Dave, Advocate, for the Appellant. Shri Gaurang H. Bhatt, Advocate, for the Respondent. ORDER Appellant herein, in this tax appeal, preferred under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 has raised following substantial questions of law for our consideration : A. Whether the orders of the Tribunal in not considering that the Commissioner (Appeals) had prevented the petitioner from raising substantive grounds in appeal was proper and sustainable, and whether the rejection of the petitioner s appeal by the Tribunal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain preferred misc. civil application before the Appellate Tribunal seeking rectification of mistake and this application was heard on merits and the Tribunal, vide its order dated 8-5-2012, rejected the said application. It would be worthwhile to reproduce the said order herein. This rectification of mistake application has been filed on the ground that appellant had filed written submission and had relied upon several decisions which are not discussed in the order passed by this Tribunal vide Order No. A/1237/WZB/AHD/2011, dated 1-7-2011. Ongoing through the order, it is seen that the order was passed on the ground that assessee had repeatedly defaulted and show cause notice have been issued on three occassions for default and therefore, there was enough justification for imposing penalty. Further, the Tribunal also considered not only the order-in-appeal impugned but also the order-in-original passed by the adjudicating authority while passing the order. 2. Under these circumstances, it cannot be said that there was a mistake just because written submission was not discussed or cases relied upon were not considered. After considering both the orders Tribunal came to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) Rules, 2001 Rule 5. Production of additional evidence before Commissioner (Appeals). - (1) The appellant shall not be entitled to produce before the Commissioner (Appeals) any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority except in the following circumstances, namely :- (a) where the adjudicating authority has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by adjudicating authority; or (c) where the appellant was prevented by sufficient cause from producing, before the adjudicating authority any evidence which is relevant to any ground of appeal; or (d) where the adjudicating authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the Commissioner (Appeals) records in writing the reasons for its admission. (3) The Commissioner (Appeals) sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation v. CCE (b) As per order of the Hon ble Tribunal, Ahmedabad in case of Gujarat Intelligence Security v. CCE reported in 2010 (19) S.T.R. 270 (T) no penalty ought to have been imposed, as ST-3 returns were filed declaring full value of services and when the issue involved was a pure question of interpretation of law and when staff salary and other infrastructural expenses are not required to be added in the assessable value, as per the precedent judgments. (c) That as per judgment of the Hon ble Tribunal, Staff Salary other infrastructural expenses are to be excluded from the gross amount received for Security Service. Please refer to the following judgments of the Hon ble Tribunal : (i) 2008 (9) S.T.R. 483 (T) - Malabar Management Services Pvt. Ltd. v. CST (ii) 2010 (19) S.T.R. 270 (T) - Gujarat Intelligence Security v. CCE . 7. It can be observed that all the three grounds are legal contentions and from the order of the Commissioner (Appeals), it is clear that it has chosen not to adjudicate on any of these grounds raised before it and instead has held that no satisfactory reasons have been provided by the appellant for entertaining such add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. The Tribunal should not be prevented from considering questions of law arising in assessment proceedings although not raised earlier. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) is too narrow a view to take of the powers of the Tribunal. Undoubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. The Supreme Court further held that the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible. There would be nothing to hamper raising of legal grounds surely. And, all the three additional grounds raised are the issues based on law. 11. On the basis of the aforementioned discussion, we are of the firm opinion that both, Commissioner (Appeals) and the Tribunal have committed error in not considering the additional grounds raised by the appellant before it. As it could be noted very clearly that these were the legal grounds which could have been raised at an stage before any authority as laid down in the decision rendered in case of Sanghvi Reconditioners Pvt. Ltd. v. Union of India (supra) on which the Commissioner (Appeals) sought to rely upon and the said proposition hardly requires any further elaboration and yet both the authorities having failed to entertain these new legal grounds for which already the facts were existing on record, the appellant has succeeded in convincing us of a need to interfere with the orders of both the authorities by answering the question framed in its favour. 12. Resultantly, impugned orders of both the authorities are hereby quashed and set aside. Parties are requested to be relegated to the Commissioner (Appeals) for consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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